Confusing signals from SC on expeditious criminal prosecution of sitting MPs and MLAs

Will there be expeditions criminal prosecution of sitting MPs and MLAs? Unfortunately, the Supreme Court is sending confusing signals on this issue. The issue being important, there is a need to have a uniform and clear stand on this issue and that should be in favour of expediting the trial of sitting MPs and MLAs in the criminal cases pending against them.

*****

Recently, I wrote an article – Expeditious criminal prosecution of sitting MPs and MLAs, in which the need to expedite the trial of the sitting MPs and MLAs in the criminal cases pending against them was highlighted. I had quoted therein a recent decision of the Supreme Court delivered on 10 March 2014 (here), in the case of Public Interest Foundation v. Union of India [Writ Petition (Civil) No. 536 of 2011]. The Supreme Court had directed therein that in relation to sitting MPs and MLAs who have charges framed against them for the offences which are specified in sub-sections (1), (2) and (3) of Section 8 of the Representation of People Act, 1951, the trial shall be concluded as speedily and expeditiously as may be possible and in no case later than one year from the date of the framing of charge(s). It was directed that in such cases, as far as possible, the trial shall be conducted on a day-to-day basis.

In the aforesaid article, I had also referred to the election speeches of the new Prime Minister Shri Narendra Modi made during the recently concluded 2014 Lok Sabha elections, vowing to end criminalisation of politics, saying that if he assumes power, he would request the Supreme Court for speedy trial of tainted MPs within one year (here).

One thought that the highest functionaries in the judiciary and the executive are on the same wavelength in respect of expeditious criminal prosecution of sitting MPs and MLAs in the criminal cases pending against them. Therefore, it was quite natural to expect immediate action on this issue. Alas! It was not to be. It appears that things do not change in India in spite of the best intentions. The Supreme Court appears to have sent contradictory and confusing signals on this issue.

On 11 June 2014, the Prime Minister Narendra Modi had sought the support of the Parliamentarians to ask Supreme Court to complete trials of pending cases against MPs within a year. Thereafter, he had asked the Law and Home Ministries to expedite criminal cases against Members of Parliament within a year.

However, on 1 August 2014, when this issue came up before the Supreme Court, surprisingly the Supreme Court refused to fast track prosecution of criminal cases against the sitting MPs and MLAs. It asked the Government of India to work out a comprehensive policy for fast-tracking trials in criminal cases and “strengthening courts” for “good governance”, and observed that only some cases, like those against the MPs, cannot be fast-tracked “at the cost of” other cases.

These observations of the Supreme Court are directly in contradiction to its aforesaid decision dated 10 March 2014 (here), in the case of Public Interest Foundation v. Union of India, as mentioned above, wherein the Supreme Court had itself directed the completion of trial of certain cases pending against the sitting MPs and MLAs within a period of one year from the date of framing of charges. Surprisingly, the aforesaid earlier decision (10 March 2014) as well as the recent observations (1 August 2014) have both come from benches headed by the present Chief Justice of India Shri R.M. Lodha.

There is no doubt that there is a need for a comprehensive policy to ensure speedy justice in all cases. The need for speedy justice has been highlighted for last several decades (for details, see my article – The illusory right to speedy trial). What is needed is simply a substantial increase in the judicial strength. However, there has been a lot of talk but no concrete and effective action so far. Governments have come and gone. The problem of huge pendency in courts continues unabated. In fact, this problem has worsened over the years. Even as of today, more than 3 crore cases are pending before various courts all over India. Notwithstanding grand plans announced from time to time to solve this problem, precious little has been done on the ground.

This being the experience so far, what is required to be done is, at least, to expedite cases which are more important than others. It needs no emphasis to say that completion of prosecution of criminal cases pending against the sitting MPs and MLAs should definitely be a topmost priority. An elected representative is a part of the law-making body. The Government of the day is also responsible to the elected representatives, and in fact, the Government itself is formed from amongst elected representatives. Therefore, two important wings of the State, namely, legislature and executive are fully dependent on the elected representatives. They represent the people’s aspirations and play an important role in deciding their destiny. An elected representative having pending criminal cases against him is not in the interest of the citizens. We cannot afford to have criminals sitting in the legislature and executive. As highlighted in my previous article (Expeditious criminal prosecution of sitting MPs and MLAs), even in the recently concluded 2014 Lok Sabha elections, out of the 543 MPs elected by the people, as many as 186 newly elected MPs (i.e., 34% of the total number of MPs in the new Lok Sabha) have criminal cases pending against them (see this link for the list), and as many as 112 newly elected MPs (i.e., 21% of the total number of MPs in the Lok Sabha) have serious criminal cases against them (see this link for the list). Thus, it is really a serious issue. The Parliament and the executive, in effect, both consist of several persons who have criminal background and who have not been absolved of the criminal cases pending against them. This is not at all desirable for a vibrant democracy.

Therefore, there is an urgent need to ensure that the prosecution of all criminal cases pending against the sitting MPs and MLAs should be given topmost priority over other cases in order to rid the legislatures (and the political executive) of people having criminal background.

The aforesaid recent observations of the Supreme Court noting that only some cases cannot be fast tracked at the cost of other cases, do not appear to be laying down the correct proposition of law. We already have fast track courts, wherein certain cases are fast tracked at the cost of other cases. For example, offences against women are usually fast tracked. Moreover, there are special courts for various categories of offences, such as corruption, offences against SCs / STs, narcotic drug cases, etc. From time to time, through various decisions, the Supreme Court has upheld such special courts as well as expeditious prosecution of only a certain types of cases. Therefore, it is too late in the day to say that only some cases cannot be fast tracked at the cost of other cases. Moreover, it can be nobody’s case that criminal cases against sitting MPs and MLAs are not important enough to be fast tracked.

No doubt, the ideal situation would be to have a comprehensive policy for ensuring speedy justice. As mentioned above, it requires strengthening the judiciary by creation of more posts and filling up of the existing vacancies in the judiciary. The Supreme Court has enough powers under the Constitution to compel the Government of India and the Governments of the States for creating more posts in the judiciary in order to ensure speedy justice to all. As explained by me in another recent article (Have we done enough for women’s security?), what is needed is only about Rs. 6000 crore per year for doubling the strength of the judiciary in India, which is not much, given that an amount in the range of Rs. 300000 crore is spent every year on various kinds of subsidies alone, many of which are wasteful and unnecessary subsidies. However, unfortunately, the Supreme Court has always felt shy in effectively forcing the Governments to increase the judicial strength to the extent necessary to ensure speedy justice. It has been satisfied by merely making some verbal observations here and there, and sometimes even making such observations or directions in its decisions also (for details, see my article – The illusory right to speedy trial). But, I shall boldly put it in writing that the Supreme Court has, somehow or the other, lacked courage and conviction in enforcing such decisions and compelling the Governments to substantially enhance judicial strength for ensuring speedy justice which has been held to be a part of the fundamental right guaranteed under Article 21 of the Constitution of India.

Therefore, given the current state of affairs, since ensuring speedy justice in all types of cases may take quite some time howsoever desirable it may be, the Supreme Court should not fail in its duty to ensure that, at least, in important categories of cases there is no delay in the completion of the judicial process. At the cost of repetition, it needs to be said that criminal cases against the sitting MPs and MLAs would definitely come in this category of important cases, which need to be expedited as directed by the Supreme Court itself in its aforesaid order dated 10 March 2014. Therefore, there is an urgent need to clear the confusion in this regard that has been created by the aforesaid recent contradictory observations of the Supreme Court on 1 August 2014. Such confusing signals, coming as they are from the highest court of the land, are not in the interest of the health of our democracy.

Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate, holds Ph.D. in Constitutional Law, and is author of 3 law books. He is the founder of this law portal. Read more by clicking here. List of his articles. List of his Forum Replies. Email: info@tilakmarg.com

This website is meant only for providing free legal information to its visitors, without any warranty. Please consult legal experts with full details of your case before relying upon the advice given. Your access and use of this website is subject to its Terms of Use. Any reference to any advocate on this website does not constitute a referral or endorsement, nor does it constitute an advertisement.